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E.C.H.R.
Indirect protection against inhuman or degrading treatment (Article 3 ECHR)
(cf. Article 4 of the Charter)
As for prisoners, case-law has indirectly extended the guarantee of Article 3 ECHR to foreigners, establishing that "the undertaking of the High Contracting Parties towards all persons under their jurisdiction extends, in respect of Article 3, to the obligation not to expose such persons to an irremediable situation of real danger outside their jurisdiction." (Commission EDH, req. 12543/86, decision of 2 December 1986) The Commission subsequently explained: "the expulsion of an individual to a country where there are grounds for believing that he will be subject to treatment contrary to Article 3 may give rise to an issue under this Article." (case of El Makhour v France, req. 14312/88, decision of 8 March 1988) The Court endorsed the Commission's case-law on this point in the Judgment of 7 July 1989, Soering v UK
Soering v UK, 7 July 1989
Imprisoned in the United Kingdom, the applicant was pending extradition to the United States (Virginia) where he risked the death sentence and exposure to the "death row phenomenon". The applicant considered that the seriousness of the risk was sufficient to make extradition contrary to Article 3 ECHR.
Cruz Varas and others v Sweden, 20 March 1991
The Court reviewed the conformity of a decision for the expulsion to Chile of an individual involved in the opposition movement during the Pinochet era. The applicant had already suffered inhuman and degrading treatment, allegedly at the hands of the police of that country. The Court concluded that there were not substantial grounds for believing that the expulsion exposed the applicant to a real risk of treatment contrary to Article 3.
"In its Soering judgment of 7 July 1989 the Court held that the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. (.)
Although the establishment of such responsibility involves an assessment of conditions in the requesting country against the standards of Article 3, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment. (.)
Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above principle also applies to expulsion decisions and a fortiori to cases of actual expulsion." (Par. 69 and 70)
Vilvarajah and others v United Kingdom, 30 October 1991
"In its Cruz Varas judgment of 20 March 1991 the Court held that expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned. (.) " (Par. 103)
"(.)since the nature of the Contracting States' responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; the Court is not precluded, however, from having regard to information which comes to light subsequent to the expulsion. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well-foundedness or otherwise of an applicant's fears. (.)" (Par. 107)
Ahmed v Austria, 17 December 1996
An expulsion order was issued against the applicant, a Somali national deprived of his refugee status following a criminal conviction. Enforcement of the expulsion would have exposed him to the risk of persecution in his country of origin.
"(.)In order to assess the risks in the case of an expulsion that has not yet taken place, the material point in time must be that of the Court's consideration of the case. Although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive. (.)" (Par. 43)
H.L.R. v France, 29 April 1997
The applicant, who was under a deportation order, argued that he risked being murdered by the drug cartel upon his return to Colombia.
"Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection." (Par. 40)
D. v United Kingdom, 2 May 1997
The applicant, terminally ill with AIDS, was under an order to leave the country after serving a prison sentence.
Jabari v Turkey, 11 July 2000,
The Court took the view that the deportation of the applicant to Iran was contrary to Article 3, inasmuch as the applicant risked being sentenced to death by stoning for adultery, in accordance with Islamic law.
Said v. The Netherlands decision of 5 July 2005.
The applicant, an Eritrean national, had applied for asylum. He feared retaliation, contrary to Article 3 ECHR, for criticism he made against his army command and his desertion. His application for asylum was refused. Considering the treatment meted out to deserters by the Eritrean authorities, as reported by Amnesty International and by the United Nations, the Court held that the applicant’s expulsion to Eritrea would violate Article 3 ECHR (§§ 54 and 55).
Protection of private and family life
(cf. Article 7 of the Charter)
El Boujaïdi v France, 26 September 1997
"The Court reiterates that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens and notably to order the expulsion of aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. (.)
The Court's task therefore consists in ascertaining whether the measure in issue struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other. " (Par. 39 and 40)
Protection in the event of detention with a view to deportation or extradition (Article 5 ECHR)
Bozano v France, 18 December 1986
The Court stated that the detention of an individual with a view to his deportation must abide by the principles of Article 5, namely it must follow 'a procedure prescribed by law' (Par. 58) and be free of arbitrariness. (Par. 59 and 60) It concluded here, based on the "volume of material pointing in the same direction" that the detention was unlawful and incompatible with the right of security of person.
"The main issue to be determined is whether the disputed detention was 'lawful', including whether it was in accordance with 'a procedure prescribed by law' ; The convention here refers essentially to national law and establishes the need to apply its rules, but it also requires that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness. (.)" (Par. 54)
"Viewing the circumstances of the case as a whole and having regard to the volume of material pointing in the same direction, the Court consequently concludes that the applicant's deprivation of liberty in the night of 26 to 27 October 1979 was neither 'lawful' within the meaning of Article 5 (1) (f), nor compatible with the 'right to security of person'. Depriving Mr Bozano of his liberty in this way amounted in fact to a disguised form of extradition designed to circumvent the negative ruling of 15 May 1979 by the Indictment Division of the Limoges Court of Appeal, and not to 'detention' necessary in the ordinary course of 'action . taken with a view to deportation'. (.)" (Par. 60)
Amuur v France, 25 June 1996
"(.)Where the 'lawfulness' of detention is in issue, including the question whether 'a procedure prescribed by law' has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness. (.)
In laying down that any deprivation of liberty must be effected 'in accordance with a procedure prescribed by law', Article 5 (1) primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law; like the expressions "in accordance with the law" and 'prescribed by law' in the second paragraphs of Articles 8 to 11, they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, it therefore falls to the Court to assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that where a national law authorises deprivation of liberty - especially in respect of a foreign asylum-seeker - it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness. These characteristics are of fundamental importance with regard to asylum-seekers at airports, particularly in view of the need to reconcile the protection of fundamental rights with the requirements of States' immigration policies." (Par. 50)
Conka v Belgium, 5 February 2002
Expulsion order for Slovakian asylum seekers whose applications had been rejected. On the fairness of administrative practices
"(.) The Convention requires that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness. (.) Although the Court by no means excludes its being legitimate for the police to use stratagems in order, for instance, to counter criminal activities more effectively, acts whereby the authorities seek to gain the trust of asylum seekers with a view to arresting and subsequently deporting them may be found to contravene the general principles stated or implicit in the Convention.
In that regard, there is every reason to consider that while the wording of the notice was "unfortunate", it was not the result of inadvertence; on the contrary, it was chosen deliberately in order to secure the compliance of the largest possible number of recipients. At the hearing, counsel for the Government referred in that connection to a 'little ruse', which the authorities had knowingly used to ensure that the 'collective repatriation' (.) they had decided to arrange was successful.
The Court reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision. (.) In the Court's view, that requirement must also be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients are lawfully present in the country or not. It follows that, even as regards overstayers, a conscious decision by the authorities to facilitate or improve the effectiveness of a planned operation for the expulsion of aliens by misleading them about the purpose of a notice so as to make it easier to deprive them of their liberty is not compatible with Article 5." On effective remedy "
(.)The Court identifies a number of factors which undoubtedly affected the accessibility of the remedy which the Government claim was not exhausted. These include the fact that the information on the available remedies handed to the applicants on their arrival at the police station was printed in tiny characters and in a language they did not understand; only one interpreter was available to assist the large number of Romany families who attended the police station in understanding the verbal and written communications addressed to them and although he was present at the police station, he did not stay with them at the closed centre; in those circumstances, the applicants undoubtedly had little prospect of being able to contact a lawyer from the police station with the help of the interpreter and, although they could have contacted a lawyer by telephone from the closed transit centre, they would no longer have been able to call upon the interpreter's services; despite those difficulties, the authorities did not offer any form of legal assistance at either the police station or the centre. Whatever the position - and this factor is decisive in the eyes of the Court - as the applicants' lawyer explained at the hearing without the Government contesting the point, he was only informed of the events in issue and of his clients' situation at 10.30 p.m. on Friday 1 October 1999, such that any appeal to the committals division would have been pointless because, had he lodged an appeal with the division on 4 October, the case could not have been heard until 6 October, a day after the applicants' expulsion on 5 October. Thus, although he still regarded himself as acting for the applicants, (.) he was unable to lodge an appeal with the committals division.
The Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective. (.) As regards the accessibility of a remedy invoked under Article 35 (1) of the Convention, this implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy. (.)" (Par. 41 to 46)
Shamsa v Poland, 27 November 2003. (only in French)
The Polish authorities issued a deportation order against the applicants, Libyan nationals, and detained them with a view to executing the order. After several deportation attempts ended in failure due to the detainees' refusal, they remained in the custody of the border police at Warsaw airport. The detainees lodged a complaint alleging violation of Article 5.1 of the ECHR, due to the deprivation of liberty imposed by the border police at Warsaw airport inthe zone reserved for persons not authorised to enter Polish territory.
The Court pointed out that "in cases of deprivation of liberty, it is particularly important to respect the principle of legal security." (§ 49) It noted that "no internal decision was issued specifying the basis for detention of the applicants in the transit zone and determining the duration and practical arrangements of their detention." (§ 55) It went on to state that "the fact that an individual is detained in this zone for an undetermined and unforeseeable period, without such detention being based on a specific legal provision or a valid judicial decision, runs counter to the principle of legal security, which is implicit in the Convention and one of the fundamental elements of the rule of law." (§ 58) Since the detention of the applicants was neither "prescribed by law" nor "lawful" within the meaning of Article 5.1 ECHR, the Court held that there had been a breach of that provision.
Procedural guarantees
Soering v United Kingdom, 7 July 1989
"The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. (.) The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk." (Par. 113)
Bozano v France, 18 December 1986
The lack of effectiveness of a non-suspensive remedy against a deportation order , enforcement of which is contrary to the Convention. (Par. 48 to 50)
Amuur v France, 25 June 1996
"Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention relating tot he Status of Refugees and the European Convention on Human Rights. States' legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions.
Such holding should not be prolonged excessively, otherwise there would be a risk of turning a mere restriction on liberty - inevitable with a view to organising the practical details of the alien's repatriation or, where he has requested asylum, while his application for leave to enter the territory for the purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country.
Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugee status." (Par. 43)
Chahal v United Kingdom, 15 November 1996
Order for the expulsion to India of a Sikh militant.
"The Court observes that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this article (Art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. (Art. 13) (.)" (Par. 145)
Mamatkulov and Abdurasulovic v. Turkey, 6 February 2003
The applicants were extradited to the Republic of Uzbekistan where there were sentenced to terms of imprisonment for an attempted terrorist attack. Their representatives state they are unable to obtain news of their clients and fear that they are being tortured. They argue that Turkey has failed in its obligations flowing from the ECHR by not following the rulings of the European Court of Human Rights pursuant to Rule 39 of the Rules of Court. (provisional measures) The Court in this case does not consider that the conditions should be connected to establish a breach of Article 3 ECHR. However, it concludes that not complying with the measures provided pursuant to Article 39 of its Rules deprived the applicants of their right of individual application.
‘(…) It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. “Pressure” includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. (…)’ (§ 95)
‘The Court notes that the fact that the respondent Government extradited the applicants without complying with the measures indicated under Rule 39 of the Rules of Court raises the issue whether, in view of the special nature of the alleged violation of Article 3 of the Convention, there has been a violation of Article 34. In the present case, once they had been extradited the applicants were unable to remain in contact with their representatives. The Court reiterates in that connection that it is implicit in the notion of the effective exercise of the right of individual application that for the duration of the proceedings in Strasbourg the principle of equality of arms should be observed and an applicant's right to sufficient time and necessary facilities in which to prepare his or her case respected. In the present case, the applicants' representatives were not able to contact the applicants, despite their requests to the Turkish and Uzbek authorities for permission to do so. The applicants were thus denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained.’ (§ 96)
According to the Court ‘it follows from Article 34 that, firstly, applicants are entitled to exercise their right to individual application effectively, within the meaning of Article 34 in fine - that is to say, Contracting States must not prevent the Court from carrying out an effective examination of the application – and, secondly, applicants who allege a violation of Article 3 are entitled to an effective examination of the issue whether a proposed extradition or expulsion will entail a violation of Article 3. Indications given by the Court, as in the present case, under Rule 39 of the Rules of Court, permit it to carry out an effective examination of the application and to ensure that the protection afforded by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention.
‘Consequently, the terms of an indication given by the Court under Rule39 must be interpreted against that background.
‘In the instant case, compliance with the indication given by the Court would undoubtedly have helped the applicants to argue their case before the Court. The material in the case file shows that the fact that Mr Mamatkulov and Mr Abdurasulovic were unable to take part in the proceedings before the Court or to speak to their lawyers hindered them in contesting the Government’s arguments on the factual issues and in obtaining evidence.
‘In view of the duty of State Parties to the Convention to refrain from any act or omission that might undermine the authority and effectiveness of the final judgment (see Article 46), and in the light of the foregoing considerations, the Court finds that the extradition of Mr Mamatkulov and Mr Abdurasulovic, in disregard of the indications that had been given under Rule 39, rendered nugatory the applicants’ right to individual application.
‘The Court reiterates in that connection that the provisions of treaties must be interpreted in good faith in the light of the object and purpose of the treaty and in accordance with the principle of effectiveness. That rule applies also to regulatory provisions which must be interpreted in the light of the provisions of the treaty to which they relate.
‘The Court accordingly concludes that any State Party to the Convention to which interim measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act or omission that will undermine the authority and effectiveness of the final judgment.
‘Consequently, by failing to comply with the interim measures indicated by the Court under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.’ (§§ 107-111)
Shemayev and 12 others v. Georgia and Russia decision of 12 April 2005.
The applicants, Russian and Georgian nationals and of Chechen origin, were arrested by police at Georgian border crossings, accused of border violation, unlawful use and trafficking of arms and were placed in pre-trial detention for three months. Many of them were extradited to Russia. They complained against Russia and Georgia, on the basis of Articles 2, 3, 5.1, .2 and .4, 13 and 6.1 and .3 ECHR.
In the field of Article 5.2 and .4 ECHR (right to liberty and security), the Court stated that the question is not one of knowing if the applicants had or could have inferred from various indications that extradition proceedings were taking place against them. The question is in fact one of knowing if the agent himself, responsible by virtue of his position to carry out a defined mission, had effectively made the persons concerned aware that they were being detained pursuant to a request for their extradition to Russia. The Court does not lose sight of the impossibility for Mr Darbaïdzé to appreciate the accuracy of the contentious translation into Chechen, but, given his position of responsibility and the serious disputes that the issue of extradition could have raised with the applicants, it was his duty to formulate his request of translation more meticulously and precisely. The Court notes that this was not the case in the present case.
Given the preceding, the Court concludes that, during their visits on 23 August and 13 September 2002, the trainee prosecutors of the Georgian Prosecutor General’s Office only found ten applicants who had not received information that met the criteria of Article 5 § 2 of the Convention regarding their detention in view of extradition.
As regards access to extradition files, the Government does not contest that the applicants’ lawyers were denied this. The Court does not accept the Government’s argument that, the right not to be extradited not being guaranteed under the Convention, it was not the public prosecutor’s duty to give the applicants access to their extradition files. It recalls that, if Article 5 § 2 does not require communication of the entire file to the individual, the individual should nevertheless receive sufficient information to allow him the recourse provided under Article 5 § 4.
Considering the foregoing, the Court concludes that there was a violation of the applicants’ rights as provided under Article 5 § 2 of the Convention (§§ 425-428). As regards the grievance drawn from Article 5 § 4 of the Convention, the Court at once raises the point that in the case the legal control sought by this provision was not found incorporated in the judgments that deprived freedom rendered by the Russian court. These judgments were concerned with the decisions placing the applicants in detention in the criminal case immediately launched against them in Russia and, recognised as enforceable in Georgia, constituted with the application for extradition the legal basis for their detention for the purposes of extradition. The procedure provided for under Article 5 § 4 requires that the individual be given guarantees adapted to the nature of deprivation of liberty of which it is a question, the Russian decisions, taken for the purposes of Article 5 § 1 c), could be seen as including legal control, from the viewpoint of Georgian law, of the detention of the applicants in view of their extradition. The Court had already held that the applicants were not informed of their detention in the context of the extradition proceedings and that they had not receive any part of their file. By this fact alone, their right to take recourse against this detention become void of its content. Under these circumstances, the Court does not hold that it is necessary to examine whether the available recourse under Georgian law would have offered the applicants sufficient guarantees for the purposes of Article 5 § 4 of the Convention. (§§ 431-433).
Massive expulsions
Conka v Belgium, 5 February 2002
Decision for the expulsion of Slovak asylum-seekers whose applications had been rejected.
"The Court is bound to observe, however, that an application for a stay of execution under the ordinary procedure is one of the remedies which, according to the document setting out the Commissioner-General's decision of 18 June 1999, was available to the applicants to challenge that decision. As, according to that decision, the applicants had only five days in which to leave the national territory, an application for a stay under the ordinary procedure does not of itself have suspensive effect and the Conseil d'État has forty-five days in which to decide such applications (section 17 (4) of the consolidated Acts on the Conseil d'État), the mere fact that that application was mentioned as an available remedy was, to say the least, liable to confuse the applicants.
An application for a stay of execution under the extremely urgent procedure is not suspensive either. The Government stressed, however, that the president of the division may at any time - even on bank holidays and on a few hours' notice, as frequently occurred in deportation cases - summons the parties to attend so that the application can be considered and, if appropriate, an order made for a stay of the deportation order before its execution. It will be noted that the authorities are not legally bound to await the Conseil d'État's decision before executing a deportation order. It is for that reason that the Conseil d'État has, for example, issued a practice direction directing that on an application for a stay under the extremely urgent procedure the registrar shall, at the request of the judge, contact the Aliens Office to establish the date scheduled for the repatriation and to make arrangements regarding the procedure to be followed as a consequence.
(.) It should be noted that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. That is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention.(.)
However, it appears that the authorities are not required to defer execution of the deportation order while an application under the extremely urgent procedure is pending, not even for a minimum reasonable period to enable the Conseil d'État to decide the application. (.)
Ultimately, the alien has no guarantee that the Conseil d'État and the authorities will comply in every case with that practice, that the Conseil d'État will deliver its decision, or even hear the case, before his expulsion, or that the authorities will allow a minimum reasonable period of grace. Each of those factors makes the implementation of the remedy too uncertain to enable the requirements of Article 13 to be satisfied." (Par. 80 to 83)
C.J.E.C.
General prohibition of discrimination.
C. v Commission, Case T-307/00 of 30 January 2003.
Difference of treatment in respect of a Commission official in the award of an orphan's pension for the applicant's daughter, based on the absence of the bonds of matrimony with the deceased father.
The Court was asked to determine whether the applicant's situation is comparable to cases covered by the provision and whether the fact that such a situation does not give entitlement to the benefit in question is justified in the light of an objective and reasonable criterion.
Article 80.4 of the Staff Rules aims to compensate for the extra child maintenance costs borne by the civil servant as a result of the death of a person obliged to contribute to such maintenance during his lifetime. Consequently, the applicant's situation, namely that of an unmarried civil servant whose child has lost her other parent who was not an EU official or agent, but who contributed to her maintenance based on a legal obligation resulting from the admission of paternity, is certainly comparable to those falling within the scope of the said article.
While the provision in question assumes that the official is obliged to bear extra costs in the case of the death of a spouse, it should assume that such extra costs also occur in the case of the death of the other parent, who is not the official's spouse but has acknowledged paternity and accordingly is legally obliged to support the child. Insofar as it does not cover such a situation, the criterion adopted by the disputed provision is disproportionate to its aim, namely to limit the award of benefit to situations corresponding in general to a loss for the official of a contribution to the maintenance of her child.
The disputed provision, insofar as it does not cover the applicant's situation which is characterised in particular by the fact that the parent who is an EU official may not count on the support of a spouse for her dependent child, makes an unjustified differentiation and is in breach of the principle of equal treatment. (§§ 52-56)
Prohibition of discrimination on grounds of nationality.
Garcia Avello v Belgium, Case C-148/02 of 2 October 2003.
"Nationals of a Member State lawfully resident in another Member State may rely on the right set out in Article 12 EC not to suffer discrimination on grounds of nationality in regard to the rules governing their surname. (…) Although, as Community law stands at present, the rules governing a person's surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law, in particular the Treaty provisions on the freedom of every citizen of the Union to move and reside in the territory of the Member States. Citizenship of the Union, established by Article 17 EC, is not, however, intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law. Such a link with Community law does, however, exist in regard to persons in a situation such as that of the children of a national of a Member State lawfully resident in the territory of another Member State. That conclusion cannot be invalidated by the fact that the children involved in the main proceedings also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.
Articles 12 EC and 17 EC must be construed as precluding (...) the administrative authority of a Member State from refusing to grant an application for a change of surname made on behalf of minor children resident in that State and having dual nationality of that State and of another Member State, in the case where the purpose of that application is to enable those children to bear the surname to which they are entitled according to the law and tradition of the second Member State. "
Morgenbesser, Case C-313/01 of 13 November 2003.
The applicant was refused enrolment in the "registro dei praticanti" to complete a period of practice in Italy before sitting the bar admission examination, on the ground that the Italian law regulating the legal profession requires the applicant to have a law degree issued or confirmed by an Italian university and because she was not qualified to practice law in France.
Noting that the host Member State must carry out a comparative examination of diplomas taking account of the differences identified between the national legal systems concerned and where necessary require the person concerned to show that he has acquired the knowledge and qualifications which are lacking, the Court held that:
"Community law precludes the authorities of a Member State from refusing to enrol the holder of a legal diploma obtained in another Member State in the register of persons undertaking the necessary period of practice for admission to the bar solely on the ground that it is not a legal diploma issued, confirmed or recognised as equivalent by a university in the first state."
Opinion of Advocate General GEELHOED, Bidar, Case C-209/03 of 11 November 2004.
Refusal to provide support assistance available to students in the United Kingdom to a French student on the ground that he was not "settled" in the host country.
The Advocate General concluded that, since the introduction of European Union citizenship, assistance with maintenance costs for students attending university courses, in the form of subsidised loans or grants, falls within the scope of the EC Treaty.
He observed that where eligibility conditions for such assistance are more cumbersome for European Union citizens who are lawfully resident in the host State than for nationals of that State, this amounts to discrimination on grounds of nationality. Such discrimination can be valid if it is justified by objective considerations and proportional to the legitimate aim. While Member States have a legitimate interest in preventing abuse of their student support systems and "benefit tourism", the manner in which this is ensured should not be such as to undermine the fundamental rights of EU citizens.
Prohibition of gender-based discrimination.
K.B., Case C-117/01 of 14 January 2004.
The applicant was unable to designate as the recipient of a survivor's pension her female-to-male transsexual partner because the latter's gender reassignment made it impossible for him to marry according to his new sexual identity under British law.
The Court found that there had been unequal treatment compared to heterosexual couples, related to the capacity to marry, which is a necessary precondition for the grant of a widower's pension. Pointing out that the European Court of Human Rights had already ruled that the impossibility for a transsexual to marry according to the new sexual identity constitutes a violation of the right to marry within the meaning of Article 12 of the ECHR, the Court observed that the legislation in question had to be regarded as being, in principle, incompatible with Community law.
"Article 141 EC, in principle, precludes legislation (...) which, in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, prevents a couple such as K. B. and R. from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other. It is for the national court to determine whether in a case such as that in the main proceedings a person in K. B.'s situation can rely on Article 141 EC in order to gain recognition of her right to nominate her partner as the beneficiary of a survivor's pension."
C.J.E.C.
Conclusions of Advocate-General STIX-HACKL in the Commission versus Germany case, C-441/02, 2 June 2005.
The Commission brought a case against Germany, considering that German law regarding foreigners and German administrative practice as regards deportation of Union citizens who are offenders violated Community law, in particular as regards the automatic nature of the deportation in case of criminal conviction. The Advocate General holds that German law clearly transposes Community law, except on one point: German law does not state explicitly enough that expulsion of Union citizens who hold a residency permit of limited duration cannot be justified for reasons of public order unless they pose a real and sufficiently serious threat affecting a fundamental interest of society, a criminal conviction is in itself thus not enough. Thus the Commission rightly criticises German administrative practice, which consists in forcibly deporting or at least deporting on principle Union citizens because of a criminal conviction, based on a provision applicable in terms of severity only to nationals of third countries.
Moreover, the Advocate General also maintains the other reasons raised by the Commission:
- the German authorities competent in matters of foreigners’ rights used the deterrent effect on other foreigners in particular to justify their decisions to deport Union citizens; the effect though is to deprive the person concerned of any means to contest the decision;
- the decisions to deport Union citizens have been made without examination of the proportionality of the decision and without regard to the effect on the fundamental right to respect for family life guaranteed by the European Convention on Human Rights and protected by Community law; for a Union citizen who may enjoy a right of residence, particularly strict criteria should apply to his deportation;
- German administrative practice violated Community law in so far as the authorities competent in foreigners’ rights ordered, in various cases, immediate implementation of deportation orders against Union citizens without first examining the urgency of the deportation in the sense that it was not possible to wait for the conclusion of the normal appeals procedure.
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